Plaintiff
American Marketing Alliance, LLC (AMA) filed a
Complaint[1] against Defendants on April 20, 2017,
after a contractual dispute. Before AMA served its Complaint
on any of the Defendants, it filed an Amended Complaint on
September 28, 2017.[2] Dominic Tampone, International Commerce
Solutions, and Stellia Limited (Stellia
Defendants)[3] filed a Motion to Dismiss, [4] arguing
insufficient service of process and failure to state a claim
upon which relief can be granted. For the reasons discussed
below, the Motion to Dismiss is GRANTED.

I.
Service of process

The
Stellia Defendants argue the Complaint should be dismissed
for failure to comply with the time limits of Federal Rule of
Civil Procedure 4(m).

Rule
4(m) states that defendants must be served within 90 days
after the complaint is filed unless service is made in a
foreign country. If the plaintiff fails to effect service
within 90 days, the court “must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.”[5]

AMA's
Complaint was filed April 20, 2017, [6] and summonses for that
Complaint were never issued. AMA did not effect service in a
foreign country, and therefore no extension under Rule 4(m)
applies. Thus, AMA did not comply with Rule 4(m).

Service
of the Amended Complaint was also insufficient. The Amended
Complaint was filed on September 28, 2017, and summonses were
issued October 26, 2017.[7] However, AMA improperly filed the
Amended Complaint. Federal Rule of Civil Procedure 15(a)
provides two methods for a party to amend its complaint: (1)
once as a matter of course within 21 days of service, or (2)
“with the opposing party's written consent or the
court's leave.” Where, as here, the initial
Complaint is not timely served, the plaintiff may not amend
as a matter of course.[8]Additionally, AMA did not receive the
Defendants' consent or the court's leave. As a
result, the Amended Complaint is of no effect and the initial
Complaint is the operative pleading. Because service of the
Complaint was insufficient, it is dismissed without
prejudice.

II.
Failure to state a claim for relief

To
survive a motion to dismiss, a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.”[9] In reviewing the
motion, the court accepts “the well-pleaded allegations
of the complaint as true” and draws all reasonable
inferences in favor of the plaintiffs.[10]

The
Stellia Defendants argue the Complaint fails to state a claim
for relief because the claims are brought by the wrong party.
The Complaint asserts claims brought on behalf of AMA, a Utah
LLC (AMA-Utah). But when looking to the contract on which the
claims are based, it is clear that the Defendants contracted
only with AMA, a Maltese LLC (AMA-Malta).[11]However, the
Complaint contains no allegations about AMA-Malta.
Nevertheless, AMA-Utah argues its Complaint is proper because
(1) AMA-Malta assigned its claims to AMA-Utah, and (2)
AMA-Malta is a “sham business entity.” The court
takes up these arguments in turn.

AMA-Utah
first argues its Complaint survives because of
AMA-Malta's assignment of claims. However, the document
allegedly assigning AMA-Malta's claims is not properly
considered at the motion-to-dismiss stage because it is not
referred to in the Complaint.[12] And even if the court were to
consider the assignment, it post-dates the Complaint by
several months and therefore could not provide a basis for
AMA-Utah to assert AMA-Malta's claims.

Additionally,
AMA-Utah's assertion that AMA-Malta is a sham entity is
unavailing. The Complaint does not allege AMA-Malta was not
validly formed. And to the extent AMA-Utah seeks to pierce
the corporate veil of AMA-Malta, it has not alleged any facts
in support of that theory.[13]

AMA-Utah
has alleged a basis only for claims by AMA-Malta, a separate
legal entity. Thus, AMA-Utah has not stated a claim for
relief ...

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